A Boston Criminal Defense Attorney’s Take On Trial Counsel (Part One)

The big day has arrived! It is your Constitutional right! You go on trial today! You just sat as the Boston prosecutor verbally toasted you on a stick in his opening statement. Now, you sit in anticipation as your lawyer approaches the jury panel.

He clears his throat. Always a crowd pleaser.

“Uh…..hi”, he tells them. “My name is Michael Mumbles and I represent…him.”

He gestures to you with his head, almost apologetically. It occurs to you that this was the same man who was pounding on his desk mere months ago, promising you a win and that he would “take no prisoners”.

“Just because they accuse my client of these things does not mean that he did them, you know”, he continues. He then launches into a monotone drone that focuses on legal terms and technicalities that would put even the most eager law student to sleep.

Something tells you you’re in trouble.
Alittle extreme? Maybe. But I can tell you that I have seen many trial attorneys out there who, in my humble opinion, should not be trying cases. Either that, or this felony trial was the first time they ever saw a jury in the flesh.

The problem is…how can you know? Many lawyers sound wonderful as they sit behind their desk and promise potential clients the moon. How can you tell before it is too late if they are the real thing?

Well, one thing you could look at is what I call the “comfort factor”. Comfort for you and comfort for the attorney.

” ‘Comfort for the attorney‘? Why do I care about that?”

Because if he is not comfortable talking to you about the subject matter of your case in his office, he is not likely to be more comfortable arguing about it in open court. Likewise, if you are in court watching her and she is fumbling and virtually incoherent arguing before a judge, it is unlikely that she is going to become the picture of eloquence before a jury.

Which brings us to comfort for you. Let’s say you have already been in court twice with the lawyer and each time he argues for something in front of the judge, he seems to be missing the point the judge is raising each time. Even you know what the judge is focused on, but, each time, your attorney does not seem to get it. Further, all his arguments seem to take that same whiny tone that would make anyone want to gouge their eardrums out. In fact, you are considering passing him a note asking him to give up the motion because you simply do not want to hear him argue anymore.

Chances are, these things are likely to make you feel uncomfortable. Listen to your gut. Now, it is possible that there are tactics involved in the lawyer’s presentation. So, ask him about it. If he suddenly begins to tear up and that whiny voice comes back…listen to your sense of discomfort.

You do not want a lawyer arguing to a judge or jury in a way which emotes that he would really rather be anywhere else than arguing your case. A tone that apologizes for being there while arguing why you are not guilty is not generally successful. You want a lawyer who presents like she believes in what she is arguing and is unapologetic about it. If she does not act like she believes in you, how is she going to convince a jury or a judge?

On the other hand, I have seen lawyers who are on the other side of that fence.

There are lawyers who will guarantee you that, if only you hire them, you will win your case. “I do not lose cases”, they say arrogantly. You find the arrogance unsettling, but figure this guy is likely to be on fire in front of a jury. Plus, there is comfort in getting that promise.

My advice? Run for Zee hills!

No lawyer of any true experience can guarantee you a result unless she is a fool or a liar. In fact, our very professional code prohibits such promises. Unless a matter ends up in a plea or dismissal, it is going to trial. Nobody can guarantee what a judge or jury will do. We can tell you what we believe the odds to be…but that is it.

Additionally, I do not believe I have met a lawyer who has won all of his or her cases unless the number of cases tried is very low. Further, the win record is not as reliable as your sense of the attorney. Perhaps the exception to this is if every case out of many was lost.

At present, out of 25 years in the criminal justice trenches, I have lost only one criminal trial; I have tried many. The loss was my first criminal defense trial back in the early nineties. Do I rush to tell potential clients that? No, I do not. This is because I believe it is misleading. I am good at what I do, and I am sure that this plays into it, but great lawyers lose cases too. The results depend on many things and I will tell you that, although I know I am gifted in what I do…I am sure that, someday, I will lose again. This is why I will never approach a case in an over-confident manner. I approach it as a paranoid, looking for anything that can go wrong so that I can be as prepared as possible for trial.

By the way, over-confident lawyers, aside from making the mistake assuming that nobody on the planet is as brilliant as they are, often appear in court just as antagonistic as you would expect. They alienate the judge, prosecutor and jury fairly quickly. They cannot help it.

The “Hey, idiots…I dare you to find my client guilty” approach is not often a successful one. Not in criminal cases.

And that touches upon what I feel is perhaps the two most important things to look for in a trial lawyer…in either a civil or criminal matter, although particularly in a criminal matter.

Unfortunately, you will have to await such nuggets in Part Two of this blog, Monday.

In the meantime, if you wish to consult with me on a matter likely to go to trial, please feel free to
give me a call at 617-492-3000 .

Some Select Cases are referred to other attorneys for principal responsibility

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